House of Representatives clears REINS Act

air-pollution
The Republican-dominated 115th Congress has launched an assault on the federal government’s system of regulation. A bill passed by the House of Representatives on Jan. 5 would require Congress to approve all administrative rules, including those that limit pollution. Image courtesy Wikimedia.

Republicans eager to take a wrecking ball to the system of administrative law in place for seven decades have moved the second of three bills central to that effort through the U.S. House of Representatives.

The majority GOP pushed through the proposed “Regulations From the Executive in Need of Scrutiny Act” Thursday on a 237-187 vote.

Before doing so legislators adopted several amendments, including one by Rep. Steve King, R-Iowa, that subjects all existing regulations to the requirements that would be imposed by the bill and another by Rep. Luke Messer, R-Ind., that would require agencies to offset the costs of new regulations by repealing or amending those already in effect.

The House rejected Democratic amendments that would exempt regulations that affect children’s health, protect public health and safety, reduce the concentration of lead in drinking water, and assure the safety of children’s toys.

Affecting most regulations issued by federal agencies that might cost business at least $100 million per year in compliance costs, and establishing a 70-day period in which Congress either approves the rule or renders it void, the bill flips on its head the system by which Presidents and their appointees have administered statutes since the 1940s.

Under current law a regulation is valid unless Congress nullifies it, something that is possible to do but rarely accomplished.The existing system of law that governs the way in which all agencies write regulations also provides safeguards to assure that public opinion and appropriate commercial, scientific, or technical information is considered by agencies. The Administrative Procedure Act of 1946, provides for comment periods and required time intervals between proposed and final regulations. Judicial review of regulations is also available in most cases.

By delegating rulemaking to agencies staffed by professional civil service members, Congress has traditionally recognized that those federal government institutions and employees are better suited to write regulations that can often be technical in nature and involve extensive development of a factual record.

H.R. 26 reverses that longstanding approach and instead mandates that Congress, the most politically attuned entity of the federal government, deliberate and decide on the appropriateness or necessity of a regulation.

The bill would also severely limit the time available to Congress to accomplish the task. Aside from the 70-day approval limit, H.R. 26 would also limit the time of debate for any rule under consideration.

Given that it is not unusual for an administration to propose more regulations than there are legislative days in a Congressional session, it is likely that Congress would not be able to keep up with the flow of requests to approve new regulations.

Some critics say that H.R. 26 also sets up a potential constitutional crisis.

First, the measure might constitute an invasion by Congress of the President’s authority to “faithfully execute the laws,” as demanded by Article 2 of the Constitution.

Second, H.R. 26 would establish a form of a legal device called the legislative veto, which the Supreme Court has twice ruled unconstitutional. As explained by Professor Ronald M. Levin of Washington University in St. Louis, an expert on administrative law:

“The problem with the REINS Act is that, with regard to major rules, it would accomplish virtually the same result as the “traditional” one-house veto—namely, it would enable a single house of Congress to nullify an agency rule, regardless of the wishes of the other house, let alone the President. The question, then, is whether the Supreme Court would accept what amounts to a 180 degree change of direction if the one-house veto were repackaged in a different format, even though the risks of unchecked action by the legislative branch would be as great in the later version as in the earlier one. My suggestion is that it would not.”
Other constitutional law scholars have disagreed with this perspective, but at minimum the issue of the validity of the REINS Act would set off a long litigation battle that might pit a current or future President against Congress.

Finally, as David Goldston, a historian and former Congressional staff member now affiliated with Natural Resources Defense Council, wrote Jan. 4, it is possible a federal court would order a regulation to be issued by an agency even as Congress refuses to approve that regulation.

Under the Constitution, a court presumably can’t require Congress to act, so the statute could not be enforced,” Goldston wrote. “But it also would not actually have been repealed.”

The GOP’s first assault on the regulatory system during the 115th Congress came Jan. 4 as H.R. 21, the so-called Midnight Rules Relief Act, cleared the House of Representatives. That bill would give Congress the power to revoke, in one fell swoop, most regulations finalized by the Obama administration since May 2016.

A Senate version of the “Midnight Rules Relief Act” has been referred to that chamber’s Government Affairs and Homeland Security Committee. A militant regulation skeptic, Ron Johnson of Wisconsin, chairs that committee.

Legislators in the U.S. Senate will also consider the proposed REINS Act. S.21 was introduced on Jan. 4 and is sponsored by Republican Rand Paul of Kentucky and 27 other senators.

President-elect Donald J. Trump has said that he will sign the proposed REINS Act if it reaches his desk.

The last bill in the Republicans’ anti-regulatory triumvirate is H.R. 5, which is styled as the “Regulatory Accountability Act of 2017.”

That measure would increase the procedural hurdles to rulemaking and forbid federal judges from deferring, in some circumstances, to agency interpretations of statutes.

REINS Act set for imminent floor vote in U.S. House of Representatives

Republicans in the U.S. House of Representatives continued their early moves in the young 115th Congress to limit executive branch regulatory power and roll back regulations by setting up the so-called REINS Act for consideration on the floor of the chamber.

The proposed new administrative law statute would require that Congress approve, by joint resolution, all “major” rules – defined as causing an annual financial impact of at least $100 million to the U.S. economy – before they can take effect.

Such an approach to regulation would be a dramatic departure from current law. Under the Administrative Procedure Act of 1946, agencies are delegated broad authority to write regulations.

Congress can step in to nullify them through use of the Congressional Review Act, a statute enacted in 1996 that requires each chamber to pass a resolution for each disapproved rule and the President to sign such resolutions if regulations are to be nullified.

On Wednesday the House Rules Committee approved the rules that will guide consideration of H.R. 26 when both the Committee of the Whole (the term for the entire membership of the House of Representatives on the first reading of a bill) and the House will consider the measure.

One hour of total debate time, to be shared by Republicans and Democrats will be permitted. Twelve amendments will be considered.

Several amendments to be offered by Democrats would limit the scope of the far-reaching legislation.

One by Rep. John Conyers, D-Mich., would exempt regulations that limit lead in drinking water from the bill’s requirements. Another by Rep. Frank Pallone, D-NJ, would remove regulations that are designed to improve the safety of pipelines or prevent, mitigate, or reduce oil or natural gas spills.

Rep. Jerrold Nadler, D-NY, will ask the House to adopt language that exempts rules relating to nuclear reactor safety.

An amendment by the ranking member of the Natural Resources Committee, Raul Grijalva of Arizona, would require agencies to provide an “accounting of the greenhouse gas emission impacts associated with a rule as well as an analysis of the impacts on low-income and rural communities.” Grijalva’s amendment, if adopted, would specify that a rule is “major” under the bill if it “increases carbon dioxide by a certain amount or increases the risk of certain health impacts to low-income or rural communities.”

A similar tack is taken by Rhode Island’s David Cicilline, who will propose removal of all rules that relate to “the protection of public health or safety” from the proposed REINS Act. An amendment to be offered by Rep. Kathy Castor of Florida would eliminate from the reach of the proposed law all regulations that “result in reduced incidence of cancer, premature mortality, asthma attacks, or respiratory disease in children.”

Some Republicans, on the other hand, appear intent on toughening the requirements to regulate even further.

An amendment by Rep. Luke Messer, R-Indiana, would require agencies to offset the costs to the economy of new rules by modifying or eliminating old ones, while Rep. Steve King of Iowa will suggest that the bill include language that gives Congress a vehicle for reviewing all regulations finalized during the past ten years.

A schedule posted on the website of House majority leader Kevin McCarthy, R-Calif., indicates that the proposed REINS Act was to be considered on the floor of the chamber starting Thursday at 10 am EST.

 

 

Commentary: Does the Michigan v. EPA decision doom the Clean Power Plan?

The U.S. Supreme Court’s June decision that rejected a Clean Air Act regulation limiting mercury emissions from power plants looms over the Obama administration’s push to cut those facilities’ greenhouse gas emissions and, given the reasoning employed by the five justices in the majority, it’s possible that the Clean Power Plan could be at risk of a similar fate.

In Michigan v. Environmental Protection Agency Justice Antonin Scalia concluded that the CAA provision at issue there requires EPA to consider the potential costs of an emissions limit to the polluter before it concludes that the limit is, in the words of the statute, “appropriate and necessary.” That decision, which was joined by fellow Republican appointees Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito, could be understood as a departure from the way the Court has traditionally interpreted the environmental laws.

For the past thirty or so years, the Court has tended to uphold an agency’s interpretation of a statute that authorizes it to write regulations if that interpretation is “reasonable.” In the words of the majority opinion in a case called Chevron USA, Inc. v. Natural Resources Defense Council, Inc.:

“First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Section 112 of the CAA does not say when EPA must consider the costs of a potential regulation, but instead requires only that EPA do so before issuing that regulation. In fact, EPA made clear that it would consider the costs of compliance with the Mercury and Air Toxics rule struck down in Michigan v. EPA before the regulation was finalized.

According to the Chevron rule that traditionally governs, the Court should have upheld the MAT rule against the attack leveled against it because the EPA’s administrator reasonably understood the statutory language to permit the agency to consider compliance costs after deciding that some limit on mercury and other toxic air pollutant emissions from coal-fired power plants is needed to protect public health and the environmental quality of the atmosphere.

But it didn’t. Instead, Scalia wrote that EPA had tried to “gerrymander” the Chevron rule by ignoring a part of the CAA. To Scalia and the justices that joined his opinion, the word “appropriate” necessarily includes consideration of compliance costs.

The Clean Power Plan, like the MAT rule, is based on a two-step process in which EPA first decided that limits on carbon dioxide emissions are needed to advance the goals of the CAA. This conclusion, known as an “endangerment finding,” preceded the agency’s consideration of the costs to industry; those costs were taken into account before the Clean Power Plan was announced in early August.

Will the Supreme Court apply the reasoning of Michigan v. Environmental Protection Agency in the inevitable challenge to President Barack Obama’s signature program for limiting the damage coal combustion does to the atmosphere? Or will it conclude, instead, that its interpretation of “appropriate and necessary” is irrelevant because a different section of the CAA authorizes the Clean Power Plan?

We cannot know that until litigation that aims to eliminate the Clean Power Plan reaches the justices. But there may be cause to worry. For one thing, Justice Thomas wrote, in his concurring opinion in the Michigan case, that he thinks deference to agency interpretations of statutes might violate the Constitution’s separation of powers doctrine. Justice Alito seems to think the Chevron doctrine has to go, too, and Scalia himself has indicated some skepticism about the degree to which courts refrain from second-guessing an agency’s understanding of a statute’s meaning. The Court’s most senior justice, Scalia has voted not to defer to an agency statutory interpretation in nearly half the cases that raise the issue since John Roberts became chief justice ten years ago.

It is not clear that Chief Justice Roberts outright opposes the idea of deferring to agency interpretations of statutes, but he has indicated a willingness to limit the circumstances under which that deference is due.

Because the Court’s four justices appointed by Democratic presidents (Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor, Elena Kagan) have not indicated any inclination to overrule the decision in the Chevron case, the fate of much of the country’s environmental regulatory apparatus is in the hands of Justice Anthony M. Kennedy.

The cacophony surrounding the 2016 Presidential election will be laced with arguments over issues big and small. The question whether EPA, or for that matter, the agencies that manage everything from our food supply to wildlife and the public lands, will have their decisions subjected to scrutiny by politically conservative judges who are inclined to favor the interests of industry or instead whether the expertise those agencies have shown will be granted the respect it deserves is one that the justices who replace 82-year old Ginsburg, 79-year old Scalia, 79-year old Kennedy, or 77-year old Breyer should keep in mind when they cast a ballot for the candidate who will appoint them.

Ninth Circuit rejects Tongass National Forest exemption to Roadless Rule

A federal appeals court has turned aside an attempt to exempt Alaska’s Tongass National Forest from a nationwide regulation protecting roadless areas.

Judge Andrew Hurwitz, writing for a majority of eleven judges sitting as an en banc panel of the U.S. Court of Appeals for the Ninth Circuit, concluded that the effort to prevent the Roadless Area Conservation Rule from applying to the country’s largest national forest violated the main federal law that governs agency rulemaking.

The majority held July 29 that the U.S. Department of Agriculture, the parent agency of the Forest Service, had reversed a finding made during the process of enacting RACR that exempting the Tongass “would risk the loss of important roadless area values” without any explanation.

“Elections have policy consequences,” Hurwitz wrote. “But . . . even when reversing a policy after an election, an agency may not simply discard prior factual findings without a reasoned explanation.”

The 69,000 square kilometer-large Tongass National Forest is the largest remaining temperate rainforest on the planet. Among the wildlife that depend on it are five stocks of Pacific salmon, grizzly and black bears, bald eagles, arctic terns, and the imperiled Alexander Archipelago wolf.

RACR, which was finalized shortly before President William J. Clinton left office in Jan. 2001, was the subject of a barrage of lawsuits. The rule did not go into effect until a federal appeals court in Denver rejected the last remaining legal attack on it in 2011.

Three judges dissented from the ruling, which might end a fight that began shortly after the administration of President George W. Bush wrote the Tongass exemption into the Code of Federal Regulations in Dec. 2003.

The state of Alaska and the Alaska Forest Association, Inc., which defended the Tongass exemption, could seek review of the Ninth Circuit’s decision.

The case is Organized Village of Kake v. U.S. Department of Agriculture, No. 11-35517.

Supreme Court poised to decide fate of mercury emission limits

The fate of a contentious U.S. Environmental Protection Agency rule limiting mercury emissions from electric power plants will be decided by the nation’s highest court sometime in the next few days in a case that could force EPA to factor in regulatory compliance costs when deciding if an air pollutant is harmful to human health.

The case turns on the question when EPA must consider industry’s compliance costs in the process of imposing emission limits on the category of air pollutants that are considered hazardous to human health and the environment.

Section 112 of the Clean Air Act imposes the requirement of a so-called “air toxics determination” before the agency can set limits on the discharge of those toxic pollutants to the atmosphere.

The statute provides that EPA must “list” all sources of air pollutants that  “present[] a threat of adverse effects to human health or the environment” that “warrant[] regulation under this section.” Once EPA lists a source of such a hazardous air pollutant, the agency is required to set standards that achieve the “maximum degree of reduction in emissions,” considering factors including compliance costs, energy requirements, and non-emission related health and environmental impacts.

The administration of former President Bill Clinton decided in Dec. 2000 that regulation of mercury, particulates, and toxic gases from electric  power plants is necessary to protect public health and the environment. The subsequent administration sought to alter that determination, but its effort to do so was rejected by a federal appeals court in 2008.

The Obama administration proceeded with development of a so-called Mercury Air Toxics rule and finalized it in Feb. 2012.

According to a fact sheet prepared by EPA, the rule would likely save up to 11,000 lives per year. About 1,400 coal-and oil-fired power plants would be affected.

During the process of finalizing the MACT rule, EPA evaluated the costs that electric utilities may incur in order to comply with the 2012 emission limits. The agency determined that the total annual costs of compliance would be about $9.6 billion. That compares to yearly public health benefits that range from $37 billion to $90 billion.

Lawyers for industry and some state governments challenged the rule in court, arguing that EPA must consider industry’s costs of compliance with emission limits before deciding that regulation of those emissions is necessary.

They lost before the U.S. Court of Appeals for the District of Columbia Circuit, which ruled in 2014 that EPA had properly considered costs at the stage of the process at which the emission limits were set.

Only one member of the three-judge panel that heard the case at the appeals court level, an appointee of former President George W. Bush, agreed with the industry lawyers’ argument.

“It’s just kind of inconceivable that Congress meant for EPA to do a cost-benefit analysis at the decision-to-regulate stage,” Karl S. Coplan, a professor of law at Pace University Law School, said. “It’s a technology-based limitation, not a health-based limit. EPA must consider costs at the stage of what the limit must be. There’s no point in making EPA consider costs at the should-we-regulate stage and then again at the what-the-limit-should-be stage.”

The Supreme Court has generally required federal courts to defer to agency interpretations of the statutes they administer if the language at issue is ambiguous and the agency’s reading is reasonable. This approach to deciding cases involving challenges to agency action, known as the Chevron doctrine, is a cornerstone of administrative law.

Coplan does not think that the MACT case before is likely to induce a majority of the justices to abandon the doctrine altogether.

“I think there are some justices that are uncomfortable with it,” he said. “But their discomfort seems to depend on which side it comes up. It’s fair to say that Justice Scalia is one of those who has expressed skepticism about it in the past.”

If the Court does not turn away from the Chevron doctrine, then the only rationale it would have to reject the MACT rule would be would be that the text of the Clean Air Act that appear to foreclose consideration of costs at the stage of deciding whether a pollutant is dangerous to human health and the environment actually does require the agency to consider such costs then.

“The finding by EPA that regulation of electrical utility industry emissions is appropriate was made many years ago and the practical effect of this decision, depending on how it comes out, could be a real setback for EPA’s regulation of coal-fired power plants and for cleaning them up,” Coplan said.

The Supreme Court heard oral arguments in the case on March 25.